Mar 27, 2013 8:00pm EDT
issue because they are thinking that the state of hawaii through its judicial action is about to change the definition of marriage from a way that it had been defined in every jurisdiction in the united states. and what that meant is that when congress passed every one of the statutes affected by doma's definition, the congress that was passing that statute had in mind the traditional definition. and so congress in 1996 at that point says, the states are about to experiment with changing this, but the one thing we know is all these federal statutes were passed with the traditional definition in mind. and if rational basis is the test, it has to be rational for congress then to say, well, we are going to reaffirm what this word has always meant for purposes of federal law. >> suppose we look just at the estate tax provision that's at issue in this case, which provides specially favorable treatment to a married couple as opposed to any other individual or economic unit. what was the purpose of that? was the purpose of that really to foster traditional marriage, or was congress just lookin
Mar 26, 2013 8:00pm EDT
. newaccepted truth that the york high court observed is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples. the question before this court is whether the constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states. and it does so only if the respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue. the issues, the constitutional issues that have been presented to the court, are not of first impression here. courter v. nelson, this unanimously dismissed for want of a substantial federal question. >> mr. cooper, baker v. nelson was 1971. evenupreme court hadn't decided that gender-based classifications get any kind of heightened scrutiny. >> that is -- >> and the same-sex intimate conduct was considered criminal in many states in 1971, so i don't think we can extract much in baker v. nelson.
Mar 31, 2013 3:39pm EDT
reasonable to view it as a change by the california supreme court of this institution that's been around since time immemorial? >> the california supreme court, like this supreme court, decides what the law is. the california supreme court decided that the equal protection and due process clauses of that california constitution did not permit excluding gays and lesbians from the right to get married -- >> you -- you've led me right into a question i was going to ask. the california supreme court decides what the law is. that's what we decide, right? we don't prescribe law for the future. we decide what the law is. i'm curious, when -- when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the fourteenth amendment was adopted? sometimes -- some time after baker, where we said it didn't even raise a substantial federal question? when -- when -- when did the law become this? >> when -- may i answer this in the form of a rhetorical question? when did it become unconstitutional to prohibit interracial marriages? when did it become